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tv   Key Capitol Hill Hearings  CSPAN  December 3, 2013 10:00am-12:01pm EST

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we are attacking project. content that 10 years ago was ridiculously complex and too complex for the do-it-yourselfer for the consumer. what we see right now is this huge move towards complexity is free. they should've won the nobel prize. it's because it is so investable at this moment. i'll give you an example. lives on the air for the last couple of weeks, we suggested to 40,000 or so listeners, hey, filed for a financial problem. we offered nothing. it's all good will. so for financial baths offer something. go build some miles and figure out exactly what the risk is imagining winners, losers and many of diversifying capital. solver something that nobody's
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ever done before endured for nothing. the idea that complexity is free is a game changer. what we see members on this hundreds, if not for a complex, really formulated 50 pages of spreadsheets, ridiculous calculations, crazy like staff, all coming in, all for free. we offered nothing other than the opportunity to participate in free change. in complex issues and make your own mark said that because you're a legacy. and it's crazy what is coming to rest. i'm not kidding when i say literally thousands of really come like a different does come in different ideas than all of that will change the world of investing financing truly dollars. the whole concept of it's all about the benjamin's. the future of money is that we used a few of too complex.
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nobody understands money in this country. very few people understand what the exchange rate is. when it gets down to it now, that is the reason we focus on moving this to a younger generation because rather than waiting until you are 50, 60, 70, 40 and doing at 21, the idea that we think this stuff is complex is released in whole and the ability to adapt to that, absorb it and deliver it a fascinating. so i just leave you with that. we are changing everybody here based on their ability to almost ask expenditures than just adapt everything and make investable appeared there is nothing at not actionable -- if it's not investable, and has no value. were trying to make this complex idea, simplify them and turn to something everybody can apply. the thank you so much. [applause]
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>> i didn't get the idea for this series. i had an idea to do a beginning book about computers, toss it specifically. i kind of inspired myself to do that just dealing with people in the magazine editing job, been on the radio at that time and being out in the public and talking to people about people and it was obvious people wanted to learn more. the material we had available at the time wasn't doing the job. we had beginner books on how to use computers, but they sucked. they were condescending, patronizing. the author was arrogant. he was like you'll never get this stuff anyway. or like look at this, this is cool. people didn't want to know that. they wanted to know the computer. even then, there was similar to see what the title when the owner found out they had this
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book "dos for dummies." he's like you can't defend the reader. cancel the vote. unfortunately -- unfortunately, 5000 copies came off the price. originally with 7500. they stopped about 5000. i figured okay, we'll show this in the marketplace and it will go away. at the time, not all the bookstores even wanted to have it. waldenbooks said we don't want to insult the reader. we don't want that. even with just 5000 copies out there, before the internet, what we had bookstores, real bookstores that people went into, they came in and it was gone. in a wiki was sold out because people wanted it. it was like they thought and said that for me. ima dummy. i want that book.
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>> on capitol hill on c-span2 at the house judiciary committee scheduled a hearing examining president about his his use of executive power. legal scholars look at the constitutionality of the administration's decision to delay the employer mandate in health care law and various decisions on immigration and drug law. virginia republican bob goodlatte chairs the committee. we will have live coverage when they start. just a couple of news items on the industry should secretary of state, john kerry is in brussels. he's joining the diplomats around the world in hopes of persuading afghan manners to let troops remain in afghanistan beyond 2014, hamid karzai had signing the status of forces agreement.
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in washington, "the associated press" that the consumer finance watchdog is expanding its oversight of sallie mae and other companies. a rule issued today by the consumer financial protection bureau extends that agencies supervision to non-companies that have lenders. the cfp be overseas banks and service student loans, but most of the end from the white house, president obama will focus on the benefits of the health care law he will be flying by the white house says have benefited from the overhaul. he will remind american fork discrimination against those with preexisting conditions. we'll have coverage of that at the white house later today in our commitment network, c-span 3. house judiciary committee waiting to gavel in.
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we stay here live on cease and two. -- c-span2. [inaudible conversations] [inaudible conversations] [inaudible conversations]
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[inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] >> which is now congressman john conyers of michigan come into the hearing room. the rayburn house office building. he is the ranking member on the house judiciary committee. they are about to hold a hearing
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like in a president obama's use of executive power. looking at the constitutionality of the administration decisions, including the decision to delay the employer mandate in the health care law. we expect a hearing to get underway shortly. it is one of several hearings recover on a c-span network. later at 3:00 p.m. eastern, we'll bring you live on c-span2, looking at the u.s. response to the typhoon high and in the philippines. that is light at 3:00 p.m. the capitol christmas tree will be lit as well. we will have live at 5:00 p.m. eastern. [inaudible conversations] [inaudible conversations]
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>> well, the houses are session this week. the judiciary committee meeting on executive power to get underway. the senate is out all of this week. they will be back monday the ninth. the house announced today that monday of next week will be a legislative day as they try to finish up work before the end of the year. the house returning today at noon eastern legislative board. sure enough for general speeches 10 bills under consideration, including one that would extend the ban on manufacturer sale of firearms that are detected by medical errors. it is a 25 year ban set to expire in december 10. they'll also take up several land elves dealing with the aviation industry. all of the legislative works out for this afternoon gets underway at nine. that is obviously over a c-span.
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meanwhile, the senate back next week. on monday the ninth, here on c-span2 we cover the hearing of the judiciary committee looking and executive powers. the panel will include a number of legal scholars who will testify on their view of the constitutionality on the administration's decisions in areas like the employer mandate and the health care and also on immigration and drug laws. the ranking member, john conyers, is in the room waiting for the chairman to command, robert goodlatte of virginia and gavel this in. [inaudible conversations] [inaudible conversations]
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[inaudible conversations] [inaudible conversations] >> house members philemon slowly to this judiciary committee hearing on executive powers still not yet underway. it is likely because the republican conference meeting in the democratic caucus meeting this morning. both of those are wrapping up at this hour. republican leaders are briefing reporters now.
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you'll be able to see that in our video library and online at the likelihood is there is a lot of talk about health care. the administration sent two officials to capitol hill to brief house democrats also at the same time on their improvements to the website, health "the associated press" is reporting about the health care law this morning. helping people use the governments online exchange are getting mixed reviews to the updated site, with some zipping through the application process, while others are facing the same old spiders and crashes. the ap writes the obama administration had vastly improved shopping on health heah or the end of november and monday was the first day since it passed near the president will be at the white house today speaking about the health care law. we will have that live coverage later on c-span 3.
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[inaudible conversations] [inaudible conversations] >> to judiciary committee will come to order. without objection, shares authorized to declare recesses at any time. the chair welcomes the numbers of the audience who are here, that any man for who disrupt his meeting will be removed. presently, we do not have order in the hearing room. members of the audience must behave in an orderly fashion or they will be removed from the hearing room.
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wu 11 of the house rules provide the chairman of the committee may punish quorum by exclusion from the hearing. if there are members here who wish to remain, they should sit down immediately, or leave the room immediately or they will be exported from the room. [inaudible conversations] today's hearing is about the president's role in our judicial system. our system of government is a tripartite one, with each branch having heard and defined functions delegated to it by the constitution. the president is charged with executing the law. the congress was writing the laws and the judiciary with interpreting them. the obama administration has the war the constitution carefully balanced separation of powers and unilaterally granted itself the extra constitutional
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authority to amend the laws and to waive or suspend this raw assertion of authority goes well beyond the executive power granted to the president didn't specifically violates the constitution's command that the president has to take care of the laws be faithfully executed. the president's encroachment into congress to spirit power is not a transgression that should be taken lightly. as english historian, edward gibbens, famously observed regarding the fall of the roman empire, the principles of a free constitution are we probably lost when the legislative power is dominated by the executive. although the president's actions may not get them out to the executive powers overtaking the legislative power, they are certainly undermining the rule of law that is at the center of our constitutional design. from obamacare to immigration, the current administration is picking and choosing which laws to an oars.
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the constitution does not confer upon the president the executive authority to disregard the separations of powers by unilaterally waving, suspending or revising the laws. it is a bedrock principle of constitutional law that the program must be fully execute acts of congress. the president cannot refuse to enforce the law simply because he dislikes it. certainly, president have from time to time make broad claims of executive power. however, assertions of executive authority have been limited to the area in which presidential powers are at their strongest. foreign affairs. the obama administration go has been equally assertive in the realm of domestic policy, routinely making end runs around congress for broad claims of prosecutorial discretion and regulatory actions that bush executive power beyond all limits. indeed, president obama is the first president since richard nixon to ignore a duly enacted
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law, simply because he disagrees with it. and they said the checks and balances established by the constitution, president obama has proclaimed that i refuse to take no for an answer, end quote. and i quote, where congress won't act, i will, end quote. throughout the obama presidency, we have seen a pattern. president obama circumvent congress when he doesn't get his way. for instance, while congress is currently debating how to gratian last, the president effectively enact the dream act himself by ordering immigration officials to stop enforcing immigration laws against certain unlawful immigrants. when he couldn't get his preferred changes to the no child left behind education law, unilaterally waived its testing accountability provisions. when he objected to work requirements for bipartisan welfare reform law come he granted waivers that are specifically forbidden by the
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statutory text. instead of working with congress to amend federal drug enforcement policy, he's instructed prosecutors to stop enforcing certain drug laws in certain states and mandatory minimum sentences for certain offenses. most notably, the president has said that statutory authorization waived, suspended and amended several major provisions of this help a lot. these unlawful modifications to obama cared include dealing for one-year obama cares employer mandate, instructing states they are free to ignore the clear language regarding which existing health care plans may be grandfathered in promulgating an iris world that allows for distribution of billions of dollars in obamacare subsidies that congress never authorized. the house has acted to validate retroactively so that the president of the golub omnicare modifications. however, rather than embrace these legislative fixes, the president's response has been to
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threaten to veto the house passed measures. the president's far-reaching claims of executive power if left unchecked will test the president was brought domestic policy authority that the constitution does not grant him. those in the president political party has been largely silenced in this dangerous expansion of executive power. what they say they president effectively repealed the environmental laws by refusing to sue polluters or the labor laws, by refusing to fine violators? what if they president wanted tax cuts that a president would not enact? to the instrument the irs to decline to enforce the income tax laws? president george w. w. bush proposed unsuccessfully a reduction in the capital gains rate. should he have instead simply instructed the irs not to tax capital gains at a rate greater than 10%? the point is not what you think of any president obama's individual policy decisions. the point is the president may not consistent with the command
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that he faithfully execute the laws unilaterally amend, way versus and the law. we must resist the president deliver a pattern of circumventing the branch in favor of administrative decision-making. we cannot allow the separation of powers enshrined in our constitution to be abandoned in favor of an undue concentration of power in the executive branch. as james madison warned centuries ago in federalist number 47, the accumulation of all powers, legislative, executive and judiciary in the same hands may justly be pronounced the very definition of tyranny. it is now my pleasure to recognize the ranking member of the judiciary committee, the gentleman from michigan, mr. conyers for his opening statement. >> thank you. good morning -- top of the morning to the witnesses and to my colleagues on the house judiciary committee.
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the president's constitutional duty to faithfully execute the laws would be an important issue worthy of a hearing by this committee if there was any evidence that the president has indeed failed to fulfill his duty. but unfortunately, it appears that some here view policy disagreements as constitutional crises and proof of possible wrongdoing. the fact is that disagreements are even allegations that a program is not being carried out the way congress intended should not raise constitutional concerns. if some of my friends want to disagree with the administration, it is of course it's certainly their right. but we should keep some days here and consider the following
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issues. to begin with some of the administration's actions criticized by the majority are not really that much out of the ordinary. .. deadlines in medicare part d.
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even though it was legislation he strongly supported, and it's especially interesting that some vendors but strenuously opposed the affordable care act and worked diligently to obstruct implementation now complained that the president is unconstitutionally and heating the implementation of his signature legislative accomplishment. how interesting. taking steps to deal with the realities of implementation of the complex problem hardly constitutes a failure to take care that the walls are faithfully executed. it is rather part and parcel of doing just that. there've been administrations in the past that have obstructed the implementation of the law they oppose. but no one is seriously contending that president obama
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opposes the affordable care act obamacare or that his administration's actions constitute obstruction of the law. and when in the past there've been legitimate concerns about the delays in the wall implementation parties have turned to the administrative procedure act. that act of laws -- allows the court to determine whether it is unreasonable and order appropriate relief. notably no one has alleged that such action is necessary here. instead, critics of president obama and his signature legislation alleged a constitutional crisis but no court has ever found delay and implementation of a complex law in violation of the clause. now some of my colleagues seem
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to think that the exercise of the prosecutorial discussion, the traditional power of the executive is a constitutional violation. the decision for example two d. for the deportation of individuals who were brought to the united states as children who haven't committed felonies or misdemeanors and do not pose a threat to public safety is a classic exercise of such discretion. the administration cannot legalize these individual statuses without a basis in the law that the administration's decision to d. for action against particular individuals is neither unusual nor unconstitutional. the supreme court has consistently held that the exercise of such discretion is
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the function of the president's powers under the take care clause. for example in hechler versus cheney the cour court held thate refusal to institute proceedings shares to some extent the characteristics of a decision of a prosecutor in the executive branch not to indict. a decision that has long been regarded as a special providence of the executive branch. it is as much of the executive who is charged by the constitution to take care that they would be faithfully executed. finally, i hope that we can distinguish between failing execute the law. some contend that the president's decision not to
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defend the defense of marriage act violated the clause and in fact the president made a judgment subsequently vindicated by the united states supreme court that the act was unconstitutional. but while the case was pending, he continued to comply with the law. the president's decision not to defend the law wasn't novel and indeed the congress itself recognized this possibility. congress understood that sometimes the administration's duty to take care that the law be faithfully executed might include recognizing that a particular statute is unconstitutional. the constitution as we are told is the supreme law of the land.
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presidents are required to follow it. so past administrations have exercised their discretion not to defend the law they have deemed unconstitutional. for example, the acting solicitor general at the time, john roberts, now the chief justice of the united states refused to defend the law that he believed to be unconstitutional in the case of natural broadcasting versus the fcc. chief justice roberts argued that the statute providing for the minority preferences and broadcasting, broadcast licensing was unconstitutional. but despite the supreme court's precedent on the standard of review, he argued that strict
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scrutiny applied. to defend the law and prevail there were reasonable arguments that the chief justice roberts could have made in the defense of the law yet no one said he violated the constitution by arguing for the court to strike that down. his view wasn't vindicated in that case but they have ultimately resulted in a shift in the law that makes it clear that the administration's decision not to defend doma was unprecedented or appropriate. so i join with all of the committee in welcoming our witness and look forward to their testimony. and i yield back the balance of my time. >> without objection, all other opening statements will be made a part of the record.
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we welcome the panel of witnesses today. if you would please rise we will begin by swearing you into. do you swear the testimony you're about to give shall be the truth, the whole truth and nothing but the truth, so help you god? lets the record reflect all of the witnesses responded in the affirmative. i will not begin by introducing the witnesses. the first witness is jonathan turley of public interest law at george washington university law school. professor turley is a legal scholars who's written extensively in areas ranging from constitutional law to legal theory and portable. he's published over 3,000 academic articles into 750 articles in newspapers including "new york times," usa today and at "the wall street journal."
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he's been recognized as the second most cited professor in the country. the second witness is nicolas rosenkranz a professor of law at georgetown university law center. professor rosenkranz served and advised the federal government in a variety of capacities including as a clerk to supreme court justice anthony kennedy and as an attorney advisor to the department of legal counsel. he has published numerous articles including the subjects of the constitution which is the single most downloaded article up at the constitutional interpretation of the history of the social sciences research network. the third witness is simon lazarus senior counsel with the accountability center. he's a member of the administrative conference of the united states and during his career he served as the public policy counsel for the national senior citizens law center as a partner at powell goldstein and associate director of president
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carter white house domestic policy staff. mr. lazarus has written articles that appeared in journals as well as publications such as the atlantic, the "washington post" and the new republic. our final witness is michael cannon of the health policy studies. he has been recognized as an influential expert on the affordable care act. mr. cannon has appeared on abc, cbs, cnn and fox news and has written articles that have been featured in numerous newspapers including "the wall street journal," usa today and the "los angeles times." he is also the coeditor of a book on replacing the portable care act and the co-author of a book on healthcare reform. i would like to thank all of the witnesses today. each of the written statements will be entered into the record in its entirety and i ask that each witness summarized his or her summary in five minutes or less to stay within the timeframe there is a timing
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light on your table. when the light switches from green to yellow, you will have one minute to conclude your testimony. when the light turns red if signals that the five minutes have expired and we will turn first to professor turley. >> thank you mr. chairman, ranking member conyers and members of the committee. it's an honor to be invited to speak with you today. about the meaning of the clause. forgive my voice. i'm getting over a cold. but i hope to make it through this without having a coughing fit. this is obviously a difficult area of the constitutional interpretation as the ranking member pointed out. this is not the first time that we have dealt with this question. it is also difficult for some of those that have been to agree with the president's policies, which i do. in fact i voted for him previously. however, in the madisonian system, it is often more important how you do something than what you do.
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the reason this is such an important hearing is that the bedrock of the constitution remains the separation of powers and it is often misunderstood as some type of conflict between the branches. it is a protection of liberty and allows issues that divide us to be cycled through a system in which factual interest can be transformed. even though all branches are equal in the madisonian system. the congress is the heart of that system. it is where the issues that are divisive are transformed into the majoritarian decisions and it is the very reason that our system has survived so well. it brings stability to the system. benjamin franklin used to say that god helps those that help themselves. in our system the constitution holds those branches that help themselves. it's designed to give each
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branch of the ability of self protection and self defense and a great deal ride on the use of that power. in my view some of the questions we are going to talk about today are close questions. things like internet gambling, drug enforcement. i think you can have credible argument on the administration side but ideally the president has exceeded his brief. the president is required to execute the law and is not required to enforce all equally or commit the same resources to them but i believe the president has crossed the line and some of these areas which i address in my testimony. what i want to start my opening statement is the emphasis this isn't a fight between politicians. rather this goes to the heart of what is the madisonian system.
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if a president can change the meaning of the law and a substantial way or refuse to enforce them it takes off-line the very thing that stabilizes the system. ideally that members will load the data they allow that to happen. this will not be the last president. there will be more presidents that will claim the same authority. when i teach constitutional law i often ask my students what is the limiting principle of your argument and when that is presented to the white house, too often it is answered in the first person, but the president is the limiting principle or at least the limiting person you really cannot rely on the type of assurance in the system. so the greatest danger of the nonenforcement orders is not what it introduces to the tripartite system, but what it takes away. it allows for the issues to be resolved unilaterally. we don't have a dialogue
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anymore. someone can step in and make legislative process simply an option as opposed to the stage of the requirement. it is here in congress at the fashionable interest: us and convert. this is the transformative branch that's different from the other branches and that is what makes this so dangerous. what madison davis created a type of orbit of branches. in fact he was very interested in the physics when he wrote much of the early writing. there is a belief that these are the three branches that exists in orbiexist inorbit held togete gravitational pull. it is a delicate balance that it is one that protects individual liberties. federalist 51 is one of the most cited sources for madison. it is a in that writing that he encourages to be on guard for the encroachment of their powers.
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for decades this congress has a lot of the core authority to drain away. i've written a lot about what this calls the fourth branch of this expanding number of federal agencies that are acting increasingly independently even designing their own jurisdicti jurisdiction. if that trend is to continue in the president's power to expand, the congress will be left on the constitutional landscape, a sad relic of what was once a tripartite branch of equal government. there are times like this one, but the members of this body are tied by the covenant of faith and it is found in article one that says all legislative powers shall be vested in the congress of the united states. it is upon that covenant that we shouldn't divide by parties and we should stand firmly for the separation of powers.
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>> mr. rosenkranz, welcome. thank you mr. tremaine, representative conyers, members of the opportunity. thank you for the opportunity. mr. chairman can i representative conyers, thank you for the opportunity to express my views of the president's constitutional duty to take care that the law be faithfully executed. i quite agree -- >> check your microphone and put it closer to you. >> to speak about the clause i want to associate myself with purpose and are turley blank opening statements. i agree with his remarks. i would like to draw the attention to the text of the clause that is about to begin by parsing the actual words so noticed that the clause is not a grant of power actually that the imposition of a duty.
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the president shall take care. this isn't optional. it is mandatory. second, note that the duty is personal. the execution has made me double gated to other officers that the duty can take care that they would be faithfully executed. that is the president's duty alone. third, notice of th that the prt is not required to take care that the law be completely executed. that would be impossible, given the finite resources. the president does have power to make enforcement choices. however, he must make them faithfully. finally, it's important to remember that historical context of the clause. english kings had claimed the power to suspend the law unilaterally but the framers rejected that practice. here the executive would be
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obliged that they would be faithfully executed. so if this possible to view the controversy through this precise proper constitutional lens. for this purpose i'm going to focus on three examples. the president's unilateral decision to suspend certain provisions of the affordable care act to the presidents unilateral abridgment of the immigration and nationality act, and on the irs targeting of the president's political adversaries. so first, the obamacare suspension. july 2, 2013 just before the long weekend, the obama administration announced over a blog post that the president would unilaterally suspend the employer mandate of obamacare notwithstanding the command of the law the statute is perfectly clear it provides that the provisions become effective on
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january 1, 2014. the post makes no mention in the statutory deadline. this raises the question of what it means to take care that the law would be faithfully executed to add to give the president broad discretion about how to best deploy the resources and at the scope of that discussion can be the subject of legitimate debate. but this isn't a calibration of executive resources. this is wholesale suspension of the law of the statutory command to the contrary. whatever it may mean to take care that they be faithfully executed it simply cannot mean declining to execute the law at all. now, the president's remarks on this issue are striking. a few months ago he said he would actually prefer to simply
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call up the speaker of the house to request a change in the law that would have achieved the desire to delay. but the truth is he wouldn't have needed to pick up the phone. the house had actually already passed the mandates delay act. but the president for firm opening the lid is the change actually threatened to veto it. so, it seems almost like a willful violation of the take care clause. the immigration and nationality act to suspension, which the chairman mentioned and i will just mention briefly what's striking about this is the president's decision to enforce the immigration law as though the dream act had been enacted when in fact it has not. so in this case it is almost a mirror of the other case rather than declining to comply with the duly enacted statute by the president is complying meticulously but with a bill
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that never became a law. congress repeatedly considered a statute called the dream act and the president favors this act and declined to pass it so the president simply announced that he would enforce the naturalization act and nationality act as though it had been -- as though the dream act had been enacted. to point out another way to point out that the law would be faithfully executed not those that fail to become the wall like the dream act. finally, it will briefly mention the irs targeting. if the adverb faithfully means anything i would say that it means nondiscriminatory way. it means the president cannot enforce the law in a discriminatory manner. the story of the targeting
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actually the application of the tax law to the president's political enemies in a discriminatory way this is perhaps the single most troubling type of enforcement discrimination. so in a way perhaps the most troubling violation of the presidents obligation to take care that it is faithfully executed. ranking member conyers and members that are here i'm afraid i'm going to have to disagree with my colleagues on the panel had spoken so far. by understanding the take care clause has become a favorite talking point with opponents within the array of the obama administration policy actions. all of these efforts or at least
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the ones with which i am familiar are in reality all these efforts to import the constitution into it are in reality political policy impacts are rhetorical make waves. they cloud the long-established presence and contradict the practice of all presidencies republican and democratic to implement complex and consequential bigotry programs as the congressman pointed out. these critics fault the obama administration that the centrally for two kind of things. one making the necessary adjustments in the timing and implementation in the law and especially in the affordable care act matching immigration enforcement priorities with available resources and
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practical humanitarian and other. but exercising presidential judgment for such reasons is precisely what the constitution requires. what the framers requested in the executive branch under the protection of the nationally elected president and charged him to take care that they would be faithfully executed. let's first take a quick look at one of the targets of these charges and that is phasing in the aca that is a routine )-close-paren action. whether the administration do? on july 2, it announced the decision to postpone for one year to january 1, 2014 effective date for the aca that workers provide health insurance or pay taxes. this and other subsequently announced the delays do not
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enforce at all. on the contrary they are merely phasing in the adjustments designed to ensure effective implementation of the statute in accordance with congress purposes. the treasury department announcement makes that clear in the proposed regulations that it has followed through on on september 5 to make that clear as does the treasury statement that it intends to continue fine-tuning those regulations and working with the people affected by them until you become finally effective. and i should emphasize just after the administration took this action, president george w. bush secretary concord the obama administration to delay the mandate was wise.
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that was based on his experience in phasing in the medicare part d. prescription drug benefit. i have to say hyperventilating about an extraordinary and unprecedented constitutional these delays are is just that. it's contrary to the obvious historical fact. nor is the delay of the employer mandate on the front of the constitution. the framers could have prescribed to m believe that the president execute so why do they have faithfully and take care and i would have to disagree with professor rosenkranz and turley about their explanation of this in the original meaning of the clause. they were taking pains to clarify the president's duty is to implement the law in good faith and to exercise reasonable care with the word take care in doing so. the fact is that scholars on both left and right can' concors
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broadly worded phase to handle with fidelity to all including indeed the constitution. as a legal and practical matter, the president's phase in of the employer mandate and other provisions as well with the job description so is the program for the childhood arrivals. i'm not going to go into that now but the congressman explained why that's true and in my written statement, we do so also. i have to say one quick word about what i know my good friend and frequent partner michael cannon is going to focus on, and that is his theory and he gets a lot of credit for picking it up and marketing it.
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his theory that the tax credits and subsidies must be available, that they are on the available to americans who have been living in states that have set up their own exchanges. i can't go into detail on this. in the questioning perhaps i will be able to do that, but if there is a few phrases in this enormous statute that have to be construed in a way that would stiff millions of people who are the intended beneficiaries of the act -- m.i. over? the fact is that it's not the correct construction and we will be able to talk about that further. >> thank you mr. lazarus.
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mr. cannon, welcomed. >> welcome. >> [inaudible] >> open microphone level closer. >> i want to start off by saying that the concerns sharing with you today are not partisanship and it's no secret that i've worked for public and. i myself am not a republican. i am acutely aware of the last publican president's failure to execute the law faithfully. in 20080 i. supported neither party candidate i actually preferred barack obama to his opponent in part because he promised to curb such abuse is by the executive grade i praised him for doing more than any libertarians to celebrate equality and the freedom on the nations for african-americans and gays and lesbians. it commends the president shall take care that the law be faithfully executed. guilty to this duty as it is
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essential for maintaining the system of governance and public order. the law is a reciprocal between the government. the public order acquires the government to remain faithful to the wall as much as it requires the citizenry to do so because of the actions of the government officials leading the citizens to conclude that those officials are no longer meaningfully bound by the law and the citizens will rightly conclude that neither are they. since he signed the patient protection affordable care act into the law, president obama has failed to execute but faithfully. the president has unilaterally taken the taxpayers dollars and made them available in favor to them from the authorized purposes towards the purposes for which no congress has ever appropriated funds. he has repeatedly written the statute to spend taxpayer dollars that no law authorizes him to spend and they expressly forbid him. he's unilaterally issued blanket waivers and requirements that doesn't authorize him to wave
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intand at the same time declineo collect taxes that they order him to collect and he's unilaterally rewritten the statute to impose williams in texas that the ppca and billions of dollars in debt that the statute forbids him to incur. he's unilaterally rewritten to allow health insurance products the statute expressly for bids and he has encouraged the consumers, insurers and state officials to violate the law that he himself and acted and he's taking the steps for the purpose of stalling the action by the people's representatives in congress. president obama blank unfaithfulness is no longer accurate to say that the statute is the law of the land. with respect to health care at least of the law of the land is whatever one man says it is or what the divided congress to let him get away with saying. what he says may contradict federal statute and comfort the benefits on favored groups or
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taxed the favorite groups without favorite representation. it may undermine the planning done by millions of individuals. it may change from day to day. this method has more in common with monarchy than with democracy or the constitutional republic. the president's failure or any president failure to honor his constitutional duty to execute the law faithfully isn't a partisan issue. the fact that they violate the duty is caused not for solace but cause for greater alarm because the guarantees the president for both parties will replicate and even surpass the abuses of their predecessors as payback. the result is democracy and freedom will suffer no matter who occupies the oval office. thank you and i look forward to your questions. >> i will begin the questioning under the five-minute rule. often times the legislative process of negotiation and about give and take between the competing interest in
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compromise. how does the president creating amendment suspending and ignoring acts of congress that will do will affect the voters latest process. >> that is a great question mr. tremaine. the short term effect is an aggrandizement of the president but predictable long-term effect is legislative gridlock. there is every reason to believe congress will not be able to reach the compromises if they know that these compromises can be unilaterally returned the white house. so every reason to believe congress will grind to a halt under the threat that president obama will rewrite it anywhere. >> could you argue that it's happening right now as you try to work out differences between the various perspectives on a piece of legislation those that may be asked to get something they think the president agrees with them on mike say why should i give up on that because they n get a change done unilaterally
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by the executive branch. >> you could imagine such a negotiation about the effective date of obamacare. after the statute is passed via decide what the congress wants. gridlock is almost quite a predictable result. >> professor turley, the constitution of the breed of power isn't simply about stopping one branch of government from usurping another. it's about protecting the liberty of american of concentrated government power. how does the modification of act of congress affect the balance of power between the political branches into the liberty interest of the american people? >> the danger is quite severe. the problem with the president is doing is that he spoke simply posing a danger to the constitutional system. he's becoming the very danger
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that the constitution was designed to avoid. that is the concentration of power in every single branch. this orbit that the three branches exist in is a delicate one but it is defined to prevent this type of concentration. there are two trends going on that should be of equal concern. one is that we have had a radical expansion of presidential powers under both president bush and president obama. we have with many calling imperial presidency model of largely unchecked authority and in that we also have a continued rise of the fourth branch. we have agencies that are quite large that issue regulations the supreme court said recently they could define their own or interpret their own jurisdicti jurisdiction. >> mr. cannon come you argue to the president is going to spend millions of dollars congress did not authorized to provide a premium assistance tax credits
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and subsidies on federally run health-care exchanges. could you please quickly walk me through by the president's plan to provide premium assistance on the poorly run exchanges is indeed illegal? gimmick we call those tax credits that in fact they are governed to subsidies and government spending at the statute is quite clear it was purposeful when it said that those premium assistance tax credits would be available only to people who purchasing health insurance through an exchange established by the state under section 13 of them. that isn't just one mention of the phrase. it's mentioned several times explicitly through cross-references and the statute is very tightly worded and it makes it clear those tax credits are available only if the state establishes an exchange itself and if the federal government established a federal fallback exchange those are not available because the exchange was under
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section 1321 and as the obama administration has acknowledged in the regulation. >> professor rosenkranz comes on the fenders have asserted that the actions were an exercise of prosecutorial discretion. are these assertions correct or is there a fundamental difference between the prosecutorial discretion and many of the president's unilateral actions? >> there are many cases i agree with the professor turley to prosecutorial discretion is one thing but the wholesale suspension of the law is something else and that is what happened under obamacare. likewise on the immigration context of a case-by-case prosecutorial discretion is one thing but if they get policy that will apply to 1.8 million people, that is quite something different. this is a scale of decision-making that isn't in the traditional conception of
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the prosecutorial discretion. >> the president has taken it a step further and has actually given legal documents to the people in that circumstance well beyond simply deciding not to leave them there and not prosecute them but actually enable the violation by giving them documents to help them avoid the problems from the country that they are not present. >> [inaudible] [inaudible]
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[inaudible] the chair now recognizes the ranking member. >> [inaudible] with the witness to his left and i would like to ask if he could pick up that line of discussion. we are pleased that you are here
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because there has been so much excitement or excited rhetoric about where president an the prd his administration are going. i've never heard of this level of hypothesizing where this is all going to take us and i think it is considerably over the top. i'm glad you are here today and i would ask you to respond, please. >> thank you very much mr. conyers. of the theory that the affordable care act actually intended to have the very benefits the law was passed to create to create the core constituency of needy people that was the target of the law my friend mr. cannon came up with is something that no one on
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either side of the idol had anything about when the law was passed. he and some other clever colleagues came up with a theory at least nine months after it was passed into the factors -- and they were happy that they have done so and they've bloated that their theory adopted by the courts would drive the stake through the part of obamacare. that's their words that it would sink the aca and threaten its survival. in fact however it does not universally acknowledged the purpose of ensuring access to health insurance for all the millions of americans who cannot afford it. to the contrary, mr. cannon and his colleagues have a few isolated words in the context and ignore the rest of this huge
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statute. but if you look at the entire statute, the whole text not just the isolated phrases mean the purpose of the statute and all americans who are eligible for the benefits to enable them to afford insurance will be able to have them whether or not they reside in the federal exchange or state exchange. one quick thing and that is mr. cannon and his friends soon realized that the reading of the text didn't make sense so they came up with an even more head scratching claim and that is the sponsors intentionally and purposely designed it to achieve this self immolation and mr. cannon just referred to that
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argument. so what this means, it means that the aca sponsors actually intended not only to stiff the very people that they wanted to benefit but it actually means that they intentionally handed over to the allies in the state capitals the state that he talks about and invited them if they chose to do so to drive it through the heart of the aca. for your theory to make sense, one has to imagine senator baucus, senator murray, senator reid, senator schumer getting together in a room off the senate floor and saying i know what we are going to do. we are going to enable the republican governors and state legislatures to decide that it won't work in their states. unsurprisingly there isn't a
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single piece of evidence in the record to support this notion and what is really going on is having politically lost in the supreme court the opponents in this theory were hoping that the courts would bail them out once again it if it is a big political left. i don't think that the courts are going to do that. >> i would ask unanimous consent to put in the record this report entitled obamacare blank single most relentless antagonist distinguished witness here tod today. >> can i ask one quick question. is the republic doing reports or
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articles? reports or articles? i can tell you. you mean on the one i'm introducing? >> yes, mr. ranking member. i have newspapers and offense put in the record but i just went and characterized not as a report but as they have a substantive backing. >> i've never been asked this question before. only because i'm often called president antagonist and i'm not sure that a report that left me out would be justified as factual. without objection, the new republican article entitled obamacare blank single most relentless antagonist and i'm sure both the author of the theory with regard to the federal use of the funds and the gentleman from california would both be proud to have the article in the record therefore
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without objection we will make it a part of the record. >> i'm sorry to disappoint my friend whose name isn't even mentioned in this article. the chair recognizes the gentleman from texas for five minutes. >> thank you mr. chairman. in my judgment, the president has ignored the calls and field to enforce them, undermined them and changed the laws contrary to the constitution. it seems to be the president is trying to meet the clause by the executive decree in the news conferences. but in a 2012 interview the president said that he could not, quote, wave away the wall fothat the congress put in place and about, quote, the president doesn't have the authority to simply ignore congress and say we are not going to enforce the law that you passed,
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"-end-double-quote. yet it seems to me that that is exactly what he has done. i would like to address my first question to the professor and director cannon. i think i know their answer. but the question is do you think the president has acted contrary to the constitution? you voted for him and you see that he's even crossed the constitutional line into the legislative process is not an option in the president has done is dangerous. so, i assume that your answer is yes. the president has acted in contrary. >> and i would also add this was an issue that the framers considered. 150 years before they drafted on the provision we shouldn't change much in the committee. the framers were very familiar with it and i think that is what gave light to this.
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>> i would say some of them are close cases but some are not. the suspension of the law for example is the paradigm case of the violation, yes. what can congress or the american people do about it and how can we restring the president from acting in a way contrary to the constitution that is the most difficult question we face. i have the honor of representing members of both parties of congress in going to the courts that are very hostile towards members and for example when they believe the violation of the constitution has occurred. they would solve many of the problems.
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the members could go to the accord and raise violations of the constitution that would be -- it would make them go away but he would know that the administration has made references and i think that there is support on this that they would withstand so we have something the framers would have never but you can have violations of the constitution yet literally no one can raise the issue successfully with courts for review. >> professor rosenkranz. >> i'm not sure that i agree with professor turley on the standing question. it is quite true that some of the violations may not be amenable to judicial review. ultimately though, that check on the constitutional violation is the election so this is the sort of hearing that we ought to be having and that the electorate ought to be paying attention to for the next round.
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>> rector? >> there is little that congress can do if it is divided over the president's abuse of his authority. but unfortunately comin commandr as the traditional revenues go it is very difficult for them to challenge an action of the president when he relaxes an obligation on a certain party. it's much easier to find those that have standing to challenge the action that imposes the due obligations that the legislature has never approved. that is what has happened in the case of the president issuing tax credits through federal exchanges because those tax credits will trigger tax penalties on employers and individuals in those 34 states that have established the exchange and a number of those employers and individuals including the two states attorneys general in the 15 indiana school districts and a dozen or more private employers
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and private citizens have filed suit. one of them will have disasters that here in washington dc said there is a remedy for some of these abuses. >> thank you director. i yield back. >> thank you mr. chairman. mr. lazarus, professor rosenkranz has written in "the wall street journal" op-ed pieces abraham lincoln wouldn't approve of the delay and the employer mandate and can extend the habeas corpus. can you comment on the claim that they would disapprove and what about the conscientious decision of habeas corpus by lincoln? >> i read it up with some amusement. i think president lincoln would
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chuckle between suspending the writ of habeas corpus and the most fundamental guarantee freedom in the whole system is a temporary delay in the implementation of regulation as a part of a very complex law which is something that happens under all administrations and has to have been sometimes for practical reasons and why we are making a big buzz about this in a constitutional matter. it doesn't do justice to your position. >> i have too little time for two little questions. let me start by saying that i generally in many respects agree with professor turley about the growth of the presidency over the last half century or more.
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i am particularly concerned about the abuse of the war powers by many president and the state secrets doctrine for the enforcement of constitutional rights and a surveillance under bush and obama and the patriot act, warrantless surveillance in the bush administration and things like that. i must say that everything we are talking about today is laughable in my opinion in the context of these problems. i am particularly struck by the overwhelming hypocrisy of the claim that the president in interpreting the law and in refusing to interpret the law in the way that would drive a stake through the law is not enforced. it's amending that he and force the law in the way that the person making the demand is not taking care and must be painfully executed.
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it's to the president to interpret the law within the boundaries that he has in a way that makes practical implementation of the law to fluctuate the will of the congress and the fact people that want to sabotage the wall and for if no it not to work ane no bones about it save he is not obeying this particular sentence in order to make it work. talk about hypocrisy. let me ask a question. have you made this statement i want to ask mr. lazarus the following question. the judge in the district of columbia circuit recently in the decision by judge kavanaugh wrote the following. the executives also tutorial discussion illustrated the key point of the separation of powers. one of the greatest unilateral powers the president possesses under the constitution at least in the domestic sphere of the power to protect individual liberty by enforcing the private behavior for precisely the power
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to seek charges against violators of the federal law would pardon the federal law. this would seem to support the broad discretion in the executive branch who said enforcement is therefore nonenforcement priorities of judge, immigration and other law. is it not related to the alleged violation of the constitution by the president sitting immigration enforcement priorities outlined earlier to. >> thank you congressman. the judge who was one of the most respected and conservative judges on the federal bench, but he said here is absolutely correct and the principles that he's enunciating are precisely why according to face with the issue is undoubtedly to uphold as perfectly compatible with the president's discretion and the program that my co- panelists
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here is a gross violation of his duty. it's an important decision about a year and a half ago, the five to three majority including justice kennedy who wrote the opinion behind the teacher of the removal system on the immigration area by the immigration officials. the initial matter he must decide whether it makes sense to pursue the removal out on the beat cobol and they went on to say that the president of the immigration law that forces the media concern and another as workers try to support their families likely pose busting wir than alien smugglers were aliens who commit a serious crime. and that's very recent decision like the judge kavanaugh blank remarks is completely at odds with the critics interpretation
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of the president enforcement in the country. >> if mr. rosenkranz agreed with the judge kavanaugh unanimous consent for one additional minute so he can answer that, mr. chairman. >> without objection to the general will have an additional one minute. >> judge kavanaugh said the president may not decline to follow the statutory mandate or prohibition simply because policy objections. the congress appropriates no money for the program the executive officer cannot move forward. but absent the claim of constitutionality that haven't been rejected by the final court order, the executive order must abide by the statutory mandate and prohibitions. the judge kavanaugh blank right side -- >> the question was delay the. thank you.
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>> the chair recognizes the gentleman from ohio for five minutes. >> thank you mr. trabant. mr. rosenkranz and mr. cannon, mr. lazarus commented upon the previous writings that you were not afforded the opportunity to respond. did you want to take a moment to do that? and i will go to you first mr. rosenkranz. >> thank you very much. there was a comment about an op-ed i wrote in "the wall street journal" comparing lincoln blank suspension of cbss corpus with president obama blank suspension of obamacare. of course i agree with mr. lazarus. they are not the same as obamacare. but what is striking about the comparison is that president lincoln welcomed the involvement of congress. welcome to the congress to ratify what he had done to pass the statute justify eating. he was concerned that they had overstepped the constitutional authority and welcom welcomed cs ratification of its action. president obama by contrast
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actually threatened to veto the statute that would have ratified his action. in fact i think is a startling contrast i was trying to bring out in that op-ed. .. they have offered despite two years of people like me raising this issue with the irs is trying to do is illegal. they have yet to offer one shred of, when statutory provision or
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one shred of evidence that supports their claim that the statute authorizes tax credit through exchanges of established by the federal government under section 1321 or that it was congresses intent for the statute to authorize tax credit through those exchanges. so there's a lot more to be said about all of this. if i make would like to respond to some of -- >> let me cut you off at this point. i only have all bit of time. mr. turley, you mentioned something along the lines of your concern that president obama is becoming the very danger, separation of powers was meant to prevent. and mr. lazarus mentioned earlier that, i don't know exactly who he's referring to, but some are hyperventilating about this whole topic. would you want to comment on
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both of those things, either in relation to each other or not? >> mr. lazarus maybe responding to my labor breathing with the flu, but if not, my testimony -- the reason i think there's this disconnect in our view, is we obviously read history differently. i view the constitutional convention is quite clear. the framers were students of history, james madison. 150 years before they took a pen and wrote out this clause there was a fight with james i about what was called royal prerogative. very similar to what president obama is claiming, the right of the game to essentially stand above the law to reform the law to the kings views. i'm not saying that president obama is a monarch but that was the issue that gave the impetus to this clause, in my view. the language did not change very much. later, people like benjamin --
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the dispensing power of the president. he wrote a very good paper about when the president can refuse to enforce laws. he basically said he could only be done -- they could only be done when there's intrusion upon executive power. by the way, that's was involved in the myers case we talked about, referred to earlier. or if it was clearly unconstitutional, and that second issue, established had to be very, very clear so the president does not exercise that authority. this is a i would respond. we don't have to hyperventilate to look any problem and take it is not about who the president it today or what he's trying to achieve. what is lacking from the other side is any notion of what the world will look like in a tripartite system if the president can literally ignore any deadline, a major piece of legislation, exclude whole classes of people. the question is what is left
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that madison described? i would suggest what's left a very dangerous and unstable system. >> thank you very much. my time is expired. yield back. >> the chair recognizes the gentleman from virginia for five minutes. >> thank you, mr. chairman. mr. lazarus, first of all, on the aca it seems to me absorbed by the federal exchanges -- absurd -- for all intents and purposes deserve as the state exchange, state marketplace, that would be, it would be absurd to interpret that they are there for all intents and purposes except for the purpose of the bill, which is the subsidies. is that right? >> is obviously absurd, congressman scott, and, therefore, to say that the president is violating his duty to see that the law is
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faithfully enforced because he interprets the law in a way that is consistent with his purpose, and consistent with the known objectives of the congress that enacted it is also it seems to me quite absurd. >> thank you. congressional research service had several examples in prior administrations for the irs, delayed enforcement despite a congressionally mandated effective date. can you say a word about the president's power to delay implementation of provisions, particularly when compliance and was logistically impossible to? >> yes. and i think actually despite the sparks that are flying around this room about the president's action with respect to the affordable care act, these principles are quite simple. several people have noted that the president cannot refuse to enforce a law or policy reasons.
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obviously, correct. certainly correct, it is also obviously not what the president is doing. does the president have policy objections for the affordable care act? i don't think so. facing in the enforcement of major statute like the affordable care act or the clean air act, or other laws, certainly laws that the epa administers, ms. statutory deadlines very, very quickly because it simply is statistically impossible to prudently implement them in accordance to those deadlines. this is just a tempest in a teapot. >> thank you. -- >> and if i can answer, said one for the thing about your first question, congressman scott. we should understand what the consequences of mr. gannon's interpretation of the aca would be, and why i they would drive a stake through the heart of the aca and every federal exchanges state. it's not just that it would keep
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maybe 80% of the people who are expected to enroll for insurance on exchanges from being able to afford the insurance. 80%. so it would really record that part of the program. but actually it would probably just cost the entire individual insurance market, even for people who could afford insurance, to implode because it would so screwe screw of the acl calculation. so it really would drive a stick to the heart of the law in the states, and to say that congress intended pun intended to do that, i don't, it's just pretty hard to argue. >> thank you. in november 1999, 28 bipartisan members of the house wrote the attorney general a letter and expressed concern that ins was
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pursuing removal in some cases quote when so many other more serious cases existed. how do you set priorities -- as the president can set priorities and enforcement when there's obviously not enough money to enforce each and every provision for the letter of the law, how do you set priorities if he can't, can't enforce each and every provision? >> the answer is the essence of the executive responsibility to do just that, and i might note that i think that president obama has increased the number of deportations to the consternation of some of his own supporters, a very great deal as everyone here i'm sure is well aware. and my understanding is just increased to 400,000 people a year which is to or times as many as the number was around
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2000. the reason for that is that's all the funds that congress has appropriated. >> my time is about to expire. i wanted to get in one of the question. can you talk about the obligation of the president to defend defense of marriage act replace it to be unconstitutional? >> yes. i think -- i agree that the president should only very, very rarely and with extremely good reason declined to defend a law in court. and i've written about that, and i think it's hard to fault with the president did in the case of doma. he concluded with very good recent there was simply no argument that could justify, justify doma. he notified the congress of this decision. he continued to enforce the he invited congress to intervene in
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litigation to present at that point of view. and ultimate the supreme court vindicated his judgment. so it seems to me it's very difficult to complain -- to blame everyone on all sides of these debates, and in both parties agree is that it contemplates the president may decline to enforce a law which he concludes in a responsible it is unconstitutional. >> the gentleman's time has expired. spent i ask unanimous consent to introduce into the record the letter i refer to. >> without objections order. the gentleman from california is recognized. >> thank you, mr. chairman. mr. lazarus, i hear you on the president deeply believing in his policy, his signature legislation, the affordable care act. but he deeply believes, i'm sure, in every item that he wants appropriated from
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congress. but two years later it expires, right? and two years later he can't just spend money unless he comes back to congress for more money, isn't that true, that it's implicit in the constitution? >> i apologize but it don't really understand the question, congressman. >> in the president's authority has run out, he must come back to the congress for new authority. in the case of the affordable care act, things which were not in the law have gone wrong. this act, this 2400 pages that had to be passed and then read, as flaws in it and these are fatal flaws if not corrected. isn't that so? including the absence of an answer to how do you subsidize if, in fact, a state chooses not to do it? mr. rosenkranz, if the law does not give the president authority and something goes wrong, i'm
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presuming that the framers always intended that you would come back to the congress to resolve that need for additional authority. that it happened, as earlier abraham lincoln came back to have his suspension of habeas, attempt to have it ratified because he knew he didn't come even if he did by executive order he had limited jurisdiction. he wanted to have a codified. i think a good example would be macarthur the promise in war, they came back with a recession act in order to undo some of the promises that were made in war to the filipino people, and so on. is there anything in the affordable care act that is different than any other time that something that's not in the law occurs that's outside the law that you come to congress and say, i need authority to ask? please. >> i quite agree. it's quite startling that this congress, this house offered to
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ratify exotica what the president wanted to do, actually passed a bill which would have delayed the implemented exactly as the president wanted. and far from welcoming this, the president actually threatened to veto it. to me that's quite startling. >> i want to go through a couple things i think we can all agree on and to do something mr. turley said. would you all agree, without further adjudicating, that when andy jackson heard from the u.s. supreme court that had no right to move native americans out of their homes to oklahoma, and he then did it anyway saying essentially to the supreme court, you have no army, therefore, i'm doing it, that he was outside his constitutional authority? you at all agree to that? let the record show i had all -- all shaking his. when richard nixon tried to withhold his tapes which were essentially evidence of his complicity in the watergate and
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the cover-up, and the court ordered the states even after he fired a number of people excellent, you would all agree that the courts action was appropriate, that there was a crime, it went to the white house and ultimate led to richard nixon resigned. you would all agree it was appropriate, i assume, for the court to intervene in this constitutional dilemma of a president who didn't want to turn over evidence related to describe. would you all agree? i would. >> good. >> yes state in which you all agree, maybe, maybe not, that when president bush asserted in the harriet miers case, as was referred to earlier, when the judge essentially said congress has a need to get people in front of it, whether that person speaks were not, ultimately, and this is mr. conyers case, that, in fact, the court intervened and said yes, i have a right to decide and you must produce witnesses. you would all agree that was a
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good balance of power decision by judge bates, is that correct? in george w.'s case. okay. then on what basis, on what basis does president obama say he's above the law win in "fast and furious" he asserted that the court had no right to even decide whether or not a lawfully delivered subpoena should, in fact, be complied with? and in this case, judge amy jackson has ruled that yes, she has the right to decide it. the question for all of you is, if we cannot go to the courts, as congress with our standing after a contentious vote, if we cannot go and get the court to decide the differences between the two branches, that, in fact,
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as some identified friends have asserted, the imperial presidency is complete. isn't that the most essential item that is, in fact, we don't have standing, if, in fact, the court doesn't have a right to decide, then executive power is essentially unlimited? mr. crowley, you have written on this. >> may i answer? >> i would ask -- >> without objection the gentleman is granted one additional minute. >> i agree that's part of the problem here, that we created a system by which presidents can assert powers that others here is unconstitutional. i think president has in this case but in the department of justice proceeds to try to block any effort of judicial review. this administration has been very successful in that, largely on standing grounds. and so there's no ability to challenge these things even if they're viewed as flagrantly in violation of the constitution. i would also add with reference to your earlier point, one of
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the things the court says with those of us represent members go to the court and say the president is acting unconstitutionally, we hear this mantra from the judge is saying you have the power of the purse. in this case is the power of the purse being violate a? if hundreds of minutes of dollars in essentially shifted in a way that congress never approved? and we have in many ways the perfect storm. even the power of the purse is often cited by the court really doesn't mean much if the president can just shoot fund unilaterally without any type of review. >> anyone else? >> i guess the only thing i would say and i don't claim to be an expert on standing, as i stated i more interested in standing of course which was the question. does the court, does the federal court have the right and obligation to make those vital decisions on essentially balance the power? and if not, aren't we didn't? >> two quick things. first of all, the courts did not have authority. have authority under the
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constitution to cases and controversies, and the courts did not have constitutional authority to decide matters that are not cases of controversy. that's why we have standing rules to the second thing i would you say, congressman -- >> so confused old to comply with a subpoena would not be a problem, therefore nixon should never have resigned because his tapes never would have been discovered? >> i don't think that that follows. >> he didn't turn them over without being ordered to. >> he might have. >> mr. rosenkranz, final? >> some of the standard questions may be tricky, but again the ultimate check on presidential law is elections and in extreme cases engagement, but elections by really should be a check on -- >> so when the irs prevents the word from getting out they infect thwarinfact thwart the e, therefore, elections are no longer the final answer, are they?
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>> to the extent that the irs targeting is an example of discriminatory enforcement, you're quite right. it's actually the most corrosive form of -- it does cast on everything that follows. it cast doubt on elections that followed. you're quite right. >> thank you, mr. chairman. >> the gentleman from georgia mr. johnson, is recognized for five minutes. >> thank you, mr. chairman. for holding this very important and significant hearing today. get my notes squared away. this hearing is pure political theater. it's a comedy but the audience has seen it so many times now that it's no longer funny. in fact, this hearing is an egregious waste of this committee's time. especially when one considers all of the legislation that remains unaddressed by the
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house, like immigration reform. the senate has passed comprehensive immigration reform by the speaker of the house continues to refuse to bring the issue to the house floor. yesterday, as house members walked down the capitol steps on their way home from an exhausting one hour workday, i watched as most members had their heads down. they wanted to avoid eye contact with the 60 or so young people standing at the foot of the steps in the cold wind. they had their hands clasped together, the young people, in prayer. their prayer was on behalf of those families and immigrants that are being destroyed as a result of this nations failed to pass comprehensive immigration reform. they are per was a simple one. that speaker boehner allow the house to vote on comprehensive immigration reform before the end of this session of congress. the spectacle of those kids shivering in prayer in the cold
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last night could not be avoided by the members of congress. though most ge capped their heas down, probably in shame as they hastily escaped to the safety of their cars. i suggest that this committee held a hearing on the question of why, despite immigration reform being supported by a majority of americans, having been passed by the senate, and the president having said that he will sign it if it ever gets to his desk, why is it that we can't bring that measure to the house floor for a vote? mr. chairman, this do-nothing house has only seven days left, seven legislative days left before it adjourned for its well-earned year in holiday. the same republican party that has voted 46 times to repeal the transport is today, ironically, complaining that the president is not implementing the law quickly enough.
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but at its essence, this hearing sadly is simply a continuation of the majorities overwhelmingly obsessive and insatiable desire to kill the affordable care act, which will enable 30 million americans to have health care. 32 million americans. 46 times they tried and failed to kill it. the result of this hearing will not change the fact that obamacare is the law of the land. and since today we're hearing testimony on the use of executive authority, let's not forget that they keep authority for congress is to check the power of the executive, is its article i authority over appropriations. and by the way, this congress has not yet passed a budget to congress continues to shirk its constitutional duties in the article i, funding the government through short-term resolutions is not leadership and the american people deserve better. so after holding yet another hearing to obstruct this
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administration, perhaps this committee can also take up the question of congress' duties under article one any hearing entitled the congress' constitutional duty to appropriate funds. now, as far as the affordable care act is concerned, the individual mandate is constitutional. it will reduce costs, prohibit discrimination against patients with preexisting conditions, and extend coverage to the uninsured. it will extend coverage that 32 million americans. the individual mandate is key to this legislation being successful. it would ensure that millions of americans will not have to worry about being denied health care because of their current medical condition or fear that the coverage will be capped if they get sick. to the members have served longer than i on this committee i invite you to look back at
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2003 when the republican-led congress enacted the law creating the medicare prescription drug program. most democrats voted against the bill in 2003. the program is also very unpopular with most americans, but democratic members worked hard when the program was implemented in 2006-2007 to make sure that their constituents received the full benefits of the program. it's unfortunate that the republicans today are not doing the same thing. mr. lazarus, this is not the first administration to temporarily postpone the application of new legislation. how have prior republican and democratic administrations treated the implementation of statutes with statutory deadlines become unworkable? >> objection. one additional minute spent all try not to take the whole minute. the answer is that prior
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administrations have done just what this administration is doing, because they have to. i quoted president bush's secretary of health and human services, mike leavitt, in saying that the president current decision to delay the employer mandate was wise. and he said that come in inside his own experience in facing them -- facing in the drug benefit program. the environmental protection agency under all administrations faces statutory deadlines that cannot be met. we all know that. and the bush administration was often chastised by environmental groups for missing statutory deadlines, and the environmental community charged, and charged in court in fact that the bush administration was using delays as a cover for simply extending the law.
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i don't know what the basis for that was or was not, and, of course, again, if a president refuses to enforce a law for policy reasons that is a violation but that's not what is going on here. >> thank you. i yield back. >> the chair recognizes the gentleman from iowa mr. king, ma for five minutes. >> thank you, mr. chairman. this is been one of most interesting i concede your in my more than a decade on this committee. as i listen, i listen to mr. lazarus, and often your dialogue goes to the policy effect of this rather than being tied to the constitutional language or the statutory link which although he of referenced both. and countries as to what you think limited powers of the president might be, given you granting such latitude to amend obamacare, extend the statutory deadline because it conforms with the broader intent of the law and governance to the intent of congress that it was intended
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to allow for the application of taxes and the distribution of refundable tax credits, even though mr. tenet testified and said that's not in the section that applies. so from a broader perspective could you tell me how you think the president's powers are limited? and maybe just ask, does have the power to collect taxes speak was first of all i think the present powers are limited by what the statute provides. and i think i said several times i agree entirely that a president cannot simply refuse to apply or enforce a law for policy reasons. [talking over each other] >> the president is obligated to face in a new law is i'm sorry, i hear that, but i'm trying to get you to constitutional limitations that you think the president has. let me just bypass the enumerated powers with the exception of.
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what would happen -- i'm concerned about mr. kerry's statement that we get into a pretty dangerous area here if we don't have constitutional limitation. what if we just linked to the end of this thing? what if the president declared war? what did he assume that authority? what is the recourse been -- what would you counsel be to this congress if we objected to such a thing? or even if we objected to a purely constitutional grounds and we thought it was a good policy decision and he vetoed our resolution to declare war? that should get us to the bottom of this discussion. >> the president does have the authority under the constitution to declare war. the congress does. the congress has not been enormously bigger to exercise that authority in my lifetime. but that's a very publi compensd subject and a subject of -- >> and two, mr. lazarus. >> between congress and executive branch there is a war powers act. there's dispute about how -- >> let me pick it up from there. i'm militating this point that if there's an incremental march,
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the president overreaching its constitutional authority in my opinion, i think the opinion of many people on this committee in this room, he could assume any of the enumerated powers and the recourse that congress would have all the way down to the declaration of war, and the recourse that congress would have would be passed a resolution of disapproval, or we could shut off the funding to the power over the purse and the president has already assumed the power of the purse. so the next recourse is go to the courts, and if we find out that the courts do not grant stand for members of congress, then the next recourse is i think as mr. rosenkranz said, the word we don't like to say in this committee and i'm not about to utter in this particular hearing, about someone to come to is ask mr. cannon this question. the frustration of this balance of power, because of the dishes but for the various branches, the competing branches of government that, and argued the founding fathers envisioned that each branch of government would
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jealously protect its constitutional power and authority and that static bounds that would be there would be the definition of a brighter line between the three articles of the constitution. but what's your suggestion on -- what been finally resolved the i know we said elections, if the elections are affected by decisions of the executive branch, what do the people who are the final arbiters of this definition of the constitution? >> to me are -- >> i'm asking mr. cannon. >> i think it was to meet him and get asking if there's no remedy, what did the people do. to what particular sort of abuses are you -- >> anyone on the list of the enumerated powers, for example, any with the question of war because that's the starkest of all. >> there is a procedure in the constitution that allows peoplee people to amend the constitution without going through congress. that is


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